People v. Wilson
Citation | 179 A.D.3d 1527,118 N.Y.S.3d 859 |
Decision Date | 31 January 2020 |
Docket Number | 1264,KA 16–00368 |
Parties | The PEOPLE of the State of New York, Respondent, v. Winston A. WILSON, Jr., Defendant–Appellant. |
Court | New York Supreme Court — Appellate Division |
KIMBERLY J. CZAPRANSKI, SCOTTSVILLE, FOR DEFENDANT–APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (STEPHEN X. O'BRIEN OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., NEMOYER, TROUTMAN, AND BANNISTER, JJ.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty of burglary in the second degree ( Penal Law § 140.25[2] ), defendant contends that his waiver of the right to appeal is invalid. We reject that contention. Defendant waived that right "both orally and in writing before pleading guilty, and [County Court] conducted an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice" ( People v. McGrew , 118 A.D.3d 1490, 1490–1491, 987 N.Y.S.2d 539 [4th Dept. 2014], lv denied 23 N.Y.3d 1065, 994 N.Y.S.2d 324, 18 N.E.3d 1145 [2014] [internal quotation marks omitted]; see People v. Weatherbee , 147 A.D.3d 1526, 1526, 46 N.Y.S.3d 811 [4th Dept. 2017], lv denied 29 N.Y.3d 1038, 62 N.Y.S.3d 307, 84 N.E.3d 979 [2017] ; People v. Nicometo , 137 A.D.3d 1619, 1619–1620, 26 N.Y.S.3d 916 [4th Dept. 2016] ). Additionally, the court "did not improperly conflate the waiver of the right to appeal with those rights automatically forfeited by a guilty plea" ( People v. Tilford , 162 A.D.3d 1569, 1569, 74 N.Y.S.3d 918 [4th Dept. 2018], lv denied 32 N.Y.3d 942, 84 N.Y.S.3d 868, 109 N.E.3d 1168 [2018] [internal quotation marks omitted]; see People v. Tabb , 81 A.D.3d 1322, 1322, 916 N.Y.S.2d 567 [4th Dept. 2011], lv denied 16 N.Y.3d 900, 926 N.Y.S.2d 35, 949 N.E.2d 983 [2011] ).
Although defendant's contention that his guilty plea was not voluntarily, knowingly and intelligently entered survives the waiver of the right to appeal (see People v. McKay , 5 A.D.3d 1040, 1041, 773 N.Y.S.2d 923 [4th Dept. 2004], lv denied 2 N.Y.3d 803, 781 N.Y.S.2d 302, 814 N.E.2d 474 [2004] ), that contention is unpreserved for our review because defendant failed to move to withdraw his guilty plea or to vacate the judgment of conviction (see People v. Rojas , 147 A.D.3d 1535, 1536, 47 N.Y.S.3d 813 [4th Dept. 2017], lv denied 29 N.Y.3d 1036, 62 N.Y.S.3d 305, 84 N.E.3d 977 [2017] ; People v. Brown , 115 A.D.3d 1204, 1205, 982 N.Y.S.2d 255 [4th Dept. 2014], lv denied 23 N.Y.3d 1060, 994 N.Y.S.2d 319, 18 N.E.3d 1140 [2014] ), and "nothing on the face of the record calls into question the voluntariness of the plea or casts significant doubt upon defendant's guilt" ( People v. Karlsen , 147 A.D.3d 1466, 1468, 47 N.Y.S.3d 584 [4th Dept. 2017], lv denied 29 N.Y.3d 1082, 64 N.Y.S.3d 172, 86 N.E.3d 259 [2017] ; see People v. Rodriguez , 156 A.D.3d 1433, 1434, 65 N.Y.S.3d 877 [4th Dept. 2017], lv denied 30 N.Y.3d 1119, 77 N.Y.S.3d 344, 101 N.E.3d 985 [2018] ). In any event, defendant's contention lacks merit inasmuch as it is based solely on an unsupported claim of innocence (see People v. Haffiz , 19 N.Y.3d 883, 884–885, 951 N.Y.S.2d 690, 976 N.E.2d 216 [2012] ; see generally People v. Dixon , 29 N.Y.2d 55, 57, 323 N.Y.S.2d 825, 272 N.E.2d 329 [1971] ), which is belied by his statements during the plea colloquy (see People v. Dale , 142 A.D.3d 1287, 1289, 38 N.Y.S.3d 333 [4th Dept. 2016], lv denied 28 N.Y.3d 1144, 52 N.Y.S.3d 296, 74 N.E.3d 681 [2017] ; see generally Dixon , 29 N.Y.2d at 57, 323 N.Y.S.2d 825, 272 N.E.2d 329 ).
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